—Tomasz Tadeusz Koncewicz, Professor of Law and Director of the Department of European and Comparative Law at the University of Gdańsk, Poland*

The Politics of Resentment. What is in a Name?

It is trite to say that today “resentment” sweeps across Europe. Yet beyond this sweeping statement, the concept itself, its consequences and modus operandi, are far from clear. We continue to lack conceptual framework to deal with it. We tend to adopt an intuitive understanding of the term and equate it with the politics of protest, contestation and revolt against mainstream politics. In this traditional sense resentment is often analyzed together with populism and the two are even used interchangeably.

Just like populism, resentment is not only anti-elitist, but also anti-pluralist.[1] Populism appeals to resentment to exclude others from “the people” and claim that only “We” represent the real “We the People.” My argument is that for resentment to obtain, it must be qualified and be more than just a critique of the elites and the status quo.

Resentment is conceptually different: more concrete and fluid and intuitive at the same time, it penetrates social and political life more deeply and broadly than populism. Resentment translates, and structures, populism. At its deepest the “politics of resentment” call into doubt the very commitments entered voluntarily. They strike at the very core of the societal fabric.

Importantly the “politics of resentment” never work on their own. It is always a function, and mixture of, culture, history and domestic politics. As a result of this “bifurcation,” resentment works differently in different environments and manifests itself in different guises: Brexit in UK, and more generally anti-European sentiments across the continent, rise of the right-wing parties in Germany, Austria and France, the spread of hate speech and exclusion of the “the Other,” Roma expulsion from France, or more recently disabling constitutional checks and balances and excluding the political opposition from the politics in Poland and Hungary. The rationale behind resentment–exclusion and distrust-–plays out in each and every case just mentioned, yet it operates differently, with varying intensity and consequences.

Last but not least, the “politics of resentment” are felt differently in the main axes of divergence that is “the West” and “the East” of the European continent. In the former case, EU law and Europeanization provoke well-known criticisms of the remoteness of Brussels with the resultant civic indifference, turn against the mainstream politics and the nostalgic return to the nation state.

In homogeneous societies of the East, the “politics of resentment” did not have “the Other” to turn against[2] and, as a result, the “politics of resentment” fed off the phenomenon that I call “alienating constitutionalism.” The latter provides fertile ground for sweeping “politics of resentment.” The incessant pressure of Europeanization and catching-up with what was thought to be a superior Western standard provoked a backlash against the elite-driven and technocratic politics. Public discourse was dominated by strict legalism and top-down approach. People were relegated to the symbolic casting the vote moment. There was almost an aura of inevitability of mainstream politics: the choice at the polls could be against a person (party) but never against the policies seen as non-negotiable itinerary to follow. The “politics of resentment” took advantage of the exclusion that defined alienating constitutionalism and transformed into vindictive constitutionalism marked by gut-politics, emotions, revolt against the corrupt political elites and institutions. “Constitutional capture” followed. The predictable and stabilizing liberal narrative of “in rule of law we trust” has been debunked by an emotional and unpredictable brand of politics.[3]

Constitutional Capture and “European Questions”

Contrary to the common narrative, the rise of the “politics of resentment” does not mark the end of democracy, rather it signals its transformation.

European “politics of resentment” foreshadow the beginning of a sweeping revolt against the mainstream politics. National exceptionalism becomes the name of the game. There is no place for “the Other” or institutions that, as resentment-driven politics portray them, stand for the allegedly corrupt elites.

The “politics of resentment” lead to a new conflict, away from party lines (left v right) and towards “political elites v angry public.” The liberal narrative of the rule of law and its embrace of the “the Other” are replaced with the apotheosis of local communities that are composed of individuals “just like us.”

The European “politics of resentment” go beyond mere populism as they resort to “constitutional capture.” Constitutional capture is a generic and novel concept that poses a challenge for the EU by showing that liberalism and democracy no longer animates national constitutions, and yet it is required at the EU level, that illiberal states can flourish within the EU.[4]

“Constitutional capture” at the service of the “politics of resentment” call into question “We, the European peoples” and the stated aim of building “an ever closer union among the peoples of Europe.” Constitutional capture stands for a systemic weakening of checks and balances and entrenching power by making future changes in power difficult. Constitutional capture is all-encompassing. It transforms the concepts that were taken for granted and were part of the liberal narrative like rule of law, legality, separation of powers, judicial independence, the supremacy of the Constitution and the monopoly of constitutional review.

Resentment-driven constitutional capture has the potential of a “spill-over effect.” It challenges the standard origin story of the EU–that it was founded to bring peace and prosperity to Europe by ending the possibility of war and encouraging the common rebuilding of economies. As such the politics of resentment entails dramatic questions for Europe and poses a challenge to revisit the raison d’être of Europe.[5]

Is Europe ready to operate as a safety valve against the excesses of a nation state which was one of the founding narratives of supranationalism at the time when first European Communities were established back in 1951 and 1957? Is the argument from containment an empty word or, to the contrary, has it still some bite? Is Europe well-equipped to deal with the politics of resentment? Could domestic constitution-making be constrained from the outside and held unconstitutional within the context of constitutional parameters dictated by the EU constitutionalism[6]? Part Two of this two-part contribution will turn to these questions.

* LLM School of Law, University of Edinburgh; Professor of Law and Director of the Department of European and Comparative Law, University of Gdańsk; 2015 – 2016 Fulbright Visiting Professor, Berkeley Law School. This short analysis is a work in progress. At this stage I am very grateful to Professors Malcolm Feeley and Kim Lane Scheppele for their enlightening and inspirational comments and suggestions on the ideas presented here. Needless to say all omissions and drawbacks are mine. All comments welcome at www.tomasz-koncewicz.eu.

[1] This is the understanding of populism adopted by J.W. Müller in his insightful analysis What is Populism? (2016).

[2] This homogeneity and the fear of “the Other” (e.g. the resistance of Central and Eastern Europe countries to accept immigration quotas) stands in stark contrast to Eastern Europe’s past marked by the diversity that was unparalleled in the rest of Europe.

[3] See the special Volume no 18/2007 of the Journal of Democracy: Is East-Central Europe Backsliding? and in particular analysis by I. Krastev, The Strange Death of the Liberal Consensus, (2007) 18 Journal of Democracy no 4, p. 56.

[4] It is a paradox that democracy and the rule of law are on the list of accession requirements for candidate states, yet member states get off the hook as soon as they join the club. The “politics of resentment” throw then into sharp relief the EU’s capability to execute the observance of these fundamental values with regard to its own member states.

[5] For a thought-provoking analysis, see G. de Búrca, Europe’s Raison D’être, New York University School of Law Public Law and Legal Theory Research Paper Series Working Paper 9/13.

[6] This is one of the most fascinating questions that modern constitutionalism grapples with. With “constitutional capture” looming large, the concept of “unconstitutional constitution” might get a new lease of life in the context of European constitutionalism.

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